EU: we didn’t ask for the source code

Last week, Microsoft made the surprising offer to open up some of their source …

When Microsoft offered to license its source code last week in an attempt to satisfy the European Commission's antitrust compliance demands, most observers were taken by surprise because the company had long resisted such a move. Count the EC among the surprised, because in December, it had communicated (subscription required) to the software giant that providing access to the source code was not the solution.

According to a secret "statement of objections" issued late last year by the EC and obtained by the Wall Street Journal, the EC specifically said it had no interest in Microsoft's opening up the source code to Windows for licensing. That's why EU antitrust commissioner Neelie Kroes was "surprised" when Microsoft made the offer.

Microsoft associate general counsel for European Operations Horacio Gutierrez confirmed that the company knew the EC wasn't looking for the source code. He said the software giant made the offer anyway because it felt that doing so was the "only way to meet [the EC's] demands."

At the heart of the dispute lies one of the sanctions levied against Microsoft by the EU as a result to its finding that the company engaged in illegal, monopolistic behavior in Europe. In addition to fining it €497 million and requiring it to release a version of Windows without out-of-the-box media player functionality, the EU required Microsoft to open up its server protocols for licensing by competitors. Microsoft has appealed the finding, but in the meantime has written a large check and shipped Windows XP N to less-than-enthusiastic reviews.

Microsoft's efforts to offer access to the server protocols have met with poor reviews. The "statement of objections" describes some of the issues that testers have had in getting things working.

A computer consultant said he and a partner failed after 42 hours of work with the protocols to make progress on relatively simple programming tasks, such as adding a new user to an office network and making password changes.

British computer scientist Neil Barrett described "totally unusable" text in Microsoft's instructions, strange terms like "context handles" and "network objects" that are never defined, and several hundred pages devoted to handling computer errors without describing how the errors occur.

In addition, competitors such as IBM, Oracle, and Sun who looked at the documentation and tested the protocols to determine the feasibility of licensing were similarly unimpressed.

We've all seen bad and/or skimpy documentation in our struggles with new software and hardware, but if true—and the comments of Microsoft's competitors should be taken with a grain of salt—the problems described in the EC's statement seem particularly egregious. Was the comment that "the source code is the best documentation" made by general counsel Brad Smith an attempt to deflect the criticism and paint the source code offer in the best possible light? If so, it's not sitting well with the EU, which has said that Microsoft will not be able to charge licensing fees for the source, unless it can prove it is "innovative."

Microsoft and the EC are headed for a February 15 deadline for complying with all of the EC's decisions, and the company runs the risk of being fined roughly US$2 million for each day of noncompliance, retroactive to December. With the documentation a mess and the terms under which the source code could be licensed a complete mystery, it's looking like the two parties are headed for a big showdown.